When the difficult emotional decision to end a marriage has been made a number of pragmatic decisions must follow. Decisions relating to custody and visitation with minor children, for example, have to be considered. Another important issue often comes up when divorce is eminent – “ Who should move out of the family residence? ” Legally, there is no simple way to make that decision; however, there are some factors that you may wish to consider when deciding who stays and who leaves. Keep in mind, however, that consulting with an experienced Tennessee family law attorney is always in your best interest as soon as divorce becomes an option.
In Tennessee, property is divided equitably in a divorce. An equitable division does not always mean equal. Instead, an equitable division means “fair”. If you and your spouse have decided to divorce, one of you will likely want to leave the marital residence while the divorce is pending. This arrangement does not have to be permanent. In other words, just because you leave the marital residence now doesn’t mean you will not be awarded the home in the final decree. Who leaves during the pendency of the divorce may be based more on economics than equitable distribution. If one of you is better able to pay the mortgage and the bills relating to the home then that person may remain in the home temporarily – at least until a court issues some preliminary orders relating to custody, support, and possession of the home.
You and your spouse may reach an out of court agreement with regard to the marital residence. If so, the court is only required to approve the settlement agreement. If you are unable to reach an agreement, the court will consider a number of factors when deciding who will remain in the home, including, but not limited to:
- Whether the home is marital property or not. If one party owned the home prior to the marriage, and the home remained separate property during the marriage, that party will likely receive the property in the divorce.
- The custody arrangements for minor children. Significant emphasis is placed on the custody arrangements. If minor children are involved, the court will likely try and allow the children to remain in the family home after the divorce if possible to avoid additional stress on the children.
- Each party’s ability to pay for the home. Clearly, the party who remains in the home has to have the ability to pay for the mortgage, the maintenance, and the upkeep of the home. In a long-term marriage, the court could order spousal support to help cover the costs of the home or even order one spouse to continue to pay the mortgage payments for some time after the divorce even though that party was not awarded the home in the divorce.
- The division of other marital assets. Ultimately, the division of property must be equitable. Therefore, if you get the marital residence that has $100,000 of equity in it, your spouse should receive property valued in the same ball-park. If there is no way to accomplish an equitable division because there are no other valuable assets, the court could order the sale of the home and the proceeds divided between the parties.
If you are concerned about who will remain in the family home in your Tennessee divorce, consult with an experienced Tennessee family law attorney as soon as possible.